Hey Compliance Warriors!
Cal/OSHA has issued some draft language for the updated ETS which will fall in line with the much anticipated OSHA ETS ordered by President Biden. Below, I have provided an article by 5 attorneys at Littler.com. This article explains the California draft and give employers a few things to consider. Read on…
On September 17, 2021, the California Division of Occupational Safety and Health (Cal/OSHA) released for discussion initial draft text for proposed permanent COVID-19 regulations, which if adopted would be subject to renewal or expiration after two years, and would replace the current Emergency Temporary Standards (ETS). Stakeholders will have the opportunity to provide input on the draft at an advisory committee meeting on September 23, 2021, and members of the public may provide written comments no later than October 4, 2021. While the draft permanent standards (“Draft PS”) comes on the heels of President Biden’s announcing the White House’s COVID-19 Action Plan, Path Out of the Pandemic, it does not mandate vaccination or set forth a requirement to test in lieu of vaccination. Cal/OSHA indicated in its regular meeting on September 16, 2021, that it will evaluate separately how to respond to a federal OSHA requirement for vaccination in the workplace after federal OSHA publishes its own emergency standard for that purpose, which may occur outside the context of a further revision to the Cal/OSHA ETS.1
Initiating a Process Toward Longer-Term Regulations Indicates COVID-19 Protocols May Be Here to Stay: As written, the Draft PS would apply for two or three years after the effective date, and includes reference to the goal of implementing a permanent general infectious disease standard by that time. These terms are beyond the maximum durations authorized for emergency regulations (and subsequent “re-adoptions”) under California Government Code section 11346.1 and related executive orders, under which Cal/OSHA has implemented the current ETS. Although the Cal/OSHA Standards Board has extensively discussed various metrics that might suggest goalposts sunsetting COVID-19 regulations, the Draft PS is currently framed as a two- or three-year proposal, without reference to defining metrics, such as COVID-19 case rates, hospitalization rates, ICU rates, workplace outbreak data, or other possibilities still under consideration. The expanded proposed duration as framed signals that COVID-19 protocols may be here to stay, even after the pandemic is a distant (or even not-so-distant) memory.
Incorporation of State/Local COVID-19 Requirements/Definitions: The Draft PS seeks to build in flexibility by expressly incorporating the California Department of Public Health (CDPH) guidelines and recommendations by reference. Specifically, the Draft PS’s definitions of “close contact” and “infectious period” would be subject to change should the CDPH promulgate different definitions. The Draft PS would also require that employers follow CDPH requirements and/or guidance, when available, regarding exclusion of COVID-19 cases and/or close contacts. Similarly, although the Draft PS appears to maintain masking requirements for unvaccinated employees, it would require employers to provide and ensure the use of face coverings whenever required by the CDPH.
Elimination of Standalone COVID-19 Prevention Plan: In a significant shift, the Draft PS would eliminate the need for a COVID-19 Prevention Plan (CPP). Instead, an employer would be required “to address the workplace hazard of COVID-19 through its Injury and Illness Prevention Plan (IIPP).” At a minimum, the Draft PS would require that employers assess the hazard of COVID-19, train their employees about the hazards and conduct investigations of COVID-19 cases in the workplace. Under the Draft PS, employers of any size would be required to document training, which is a departure from existing IIPP requirements.
Face Coverings, Respirators and Personal Protective Equipment (PPE): As noted above, the Draft PS would require that employers provide and ensure the use of face coverings whenever required by the CDPH. In the absence of CDPH requirements, the rule defaults to requiring that unvaccinated employees wear face coverings while indoors or in a vehicle with others. The Draft PS would also amend voluntary and mandatory respiratory protection requirements. Employers are now only obligated to provide respirators (N95s) for voluntary use to employees identified by a health care professional “as being at increased risk of severe illness from COVID-19, regardless of vaccination status.” This is a departure from the current ETS, which requires that employers provide respirators upon request to unvaccinated employees.
Vaccine Ascertainment and Recordkeeping Requirements: The Draft PS defines “fully vaccinated” to mean that the employer has “an electronic or physical copy” of the vaccination record stating the (1) vaccine manufacturer and (2) date of last dose, including any booster doses. This language appears to preclude an employer’s reliance on employee self-attestations to verify vaccination status. The Draft PS would further require employers to maintain COVID-19 vaccination records for two years beyond the period “in which the records are necessary to meet the requirements” of the Draft PS. Accordingly, vaccination records will likely have to be maintained for at least two years after the rule’s sunset date, if not longer. In addition, the Draft PS would expressly incorporate the Labor Code section 6409.6 subdivision (k) requirement that employers maintain copies of all AB-685 notices of a COVID-19 case at the worksite for a period of at least three years. The Draft PS otherwise maintains previous recordkeeping requirements regarding COVID-19 cases.
Revised Ventilation Requirements: The Draft PS has expanded ventilation requirements. Employers would be required to review CDPH and Cal/OSHA guidance regarding ventilation and to implement changes as necessary and provide specific options for potential implementation. The Draft PS further provides that employers subject to Title 8, CCR section 5142 (Mechanically Driven Heating, Ventilating and Air Conditioning (HVAC) Systems to Provide Minimum Building Ventilation) and 5143 (Mechanical Ventilation Systems) review and comply with those sections as applicable.
COVID-19 Notice and Testing Requirements: The Draft PS would require that employers provide COVID-19 testing to all close contacts during working time and at no cost to the employee, regardless of vaccination status. The Draft PS eliminates the previous exception for asymptomatic, fully vaccinated employees. The Draft PS continues to exclude from the testing requirement employees who have recovered from COVID-19 and have remained asymptomatic for 90 days after the initial onset of symptoms or their first positive test, as applicable. The Draft PS imposes no additional testing requirements in a non-outbreak scenario. The Draft PS would expressly require that employers follow the notice requirements under Labor Code section 6409.6(a) and (c). Although this represents a simplification of prior language, the requirements remain the same.
No Provision for Exclusion Pay, Handwashing, and Cleaning/Disinfecting Procedures: The Draft PS removes any reference to “exclusion pay.” As such, any continuing COVID-19 paid leave obligations would be left to the legislature. If adopted, the Draft PS sets the stage for a potentially busy legislative session regarding paid leave. The Draft PS similarly removes any express requirements regarding handwashing or cleaning/disinfecting procedures.
Revised Outbreak Requirements: Under the Draft PS, all outbreaks, minor or major, would be governed by a single section. As before, there are tiered testing obligations and other requirements imposed depending on the severity of the outbreak (i.e., three positive cases in 14 days or 20 positive cases in 30 days). There are two changes of particular note. First, as with close-contact testing requirements, vaccinated employees are not exempt from testing. Second, outbreaks involving 20 or more positive cases in 30 days (i.e., what was previously defined as a “major” outbreak), are now reportable to Cal/OSHA.
Employer-Provided Housing and Transportation: The Draft PS maintains most requirements for employer-provided housing with the exception of cleaning and disinfecting requirements. The most notable change is that isolation requirements for COVID-19 cases would apply to housing in which all residents are fully vaccinated. With respect to employer-provided transportation, the Draft PS removes most of its specific requirements and merely directs employers to comply with 8 CCR section 3205. Significantly, the Draft PS removes any exception for fully vaccinated employees in the vehicle and the rule continues to set forth requirements concerning the assignment of transportation.
California employers will have to continue to follow the core obligations set out in the current ETS until Cal/OSHA issues a second re-adoption of the ETS or adopts longer-term standards. The Draft PS would represent a simplification of Cal/OSHA’s COVID-19 requirements in the workplace, as compared to the current ETS. Would the removal of the CPP provisions mean an employer could completely disregard its Plan? No, but the placement of the CPP into the IIPP should allow employers more flexibility to implement procedures suitable to their workplace.
The Draft PS signals Cal/OSHA’s intent to continue its COVID-19 enforcement including the issuance of citations. As such, employers with operations in California should continue to follow the requirements of the currently applicable ETS, while also preparing to ensure they have an IIPP that includes COVID-19 protocols and are documenting their efforts to implement and enforce COVID-19 workplace safety measures.
1 Employers subject to Cal/OSHA’s Aerosol Transmissible Diseases Standard (Section 5199) should be aware that Cal/OSHA is also presently moving forward on a separate but related path to consider adding COVID-19 and the COVID-19 vaccine to Section 5199, which already contains provisions regarding “vaccine-preventable diseases” such as tuberculosis and the seasonal flu. At its meeting on September 16, 2021, Cal/OSHA indicated tentative scheduling for a meeting of stakeholders on this issue to occur on or about October 14, 2021.
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